Real Property Situate at Moiliili, Waikiki-Waena, City and County of Honolulu, In re

• Decision Date: 02 February 1967
• Docket Number: WAIKIKI-WAEN,No. 4414,CITY,4414
• Citation: 425 P.2d 83,49 Haw. 537
• Parties: , 49 Haw. 575 In the Matter of the Application of State of Hawaii to Register Title to REAL PROPERTY Situate at MOILIILI,AND COUNTY OF HONOLULU, State of Hawaii.
• Court: Hawaii Supreme Court

Page 83

425 P.2d 83

49 Haw. 537, 49 Haw. 575

In the Matter of the Application of State of Hawaii to

Register Title to REAL PROPERTY Situate at

MOILIILI, WAIKIKI-WAENA, CITY AND COUNTY

OF HONOLULU, State of Hawaii.

No. 4414.

Supreme Court of Hawai'i.

Feb. 2, 1967.

Rehearing Denied Feb. 23, 1967.

Syllabus by the Court

1. Section 752 of the 'School Lands Act of 1859' providing that 'all sites for school houses * * * and all lands connected therewith, which have been granted by or to the government, for the purpose of promoting the interests of education * * * shall be reserved as government property, so long as they are devoted to the purposes for which they were granted * * * and in case they shall cease to be used for the purposes for which they were granted, for not less than one year, they shall revert to the original grantors * * *' creates the classic possibility of reverter, automatically restoring the property to the original grantors upon nonuse without the necessity of showing an intent to abandon the use by the government.

2. Title to government land cannot be acquired by private persons by adverse possession.

3. The government may be statute permit the acquisition of title to government land by adverse possession or by possession akin to prescription. Such was the case under the reverter upon nonuse provisions of Section 752 of the 'School Lands Act of 1859' where possession by private parties is clear and convincing evidence of nonuse by the government.

4. Mere claim of title without express proof of actual possession for the statutory period is ineffective to vest title by adverse possession.

Willson C. Moore, Jr., Honolulu, for respondent-appellant.

Andrew S. O. Lee, Deputy Atty. Gen. (Bert T. Kobayashi, Atty. Gen., with him on the brief) for applicant-appellee.

Before RICHARDSON, C. J., CASSIDY and WIRTZ, JJ., and OKINO, Circuit Judge, in place of LEWIS, J., disqualified, and MONDEN, Circuit Judge, in place of MIZUHA, J., disqualified.

WIRTZ, Justice.

This is an appeal from the decree of the land court entered in Land Court Application No. 327, registering title in the State of Hawaii to a 74,530 square foot parcel (1.73 acres) of land in Moiliili, Waikiki, Oahu, claimed as a schoolhouse site under School Grant No. 27, Royal Patent No. 27, pursuant to the 'School Lands Act of 1850.' Respondent-appellant, the Minnie In 1848, pursuant to the Mahele or land division of Kamehameha III, Kalama and Nakookoo acquired the Ili of Maulukikepa located in Waikiki on the Island of Oahu.

Becker Trust Estate, ¹ claimed title to a 14,885 square foot portion thereof as being a part of the Ili of Maulukikepa granted to Kalama and Nakookoo under the Mahele, or land division of Kamehameha III, whose title was confirmed by Land Commission Award Nos. 5240 and 5364, and acquired by the respondent by mesne conveyances through an unbroken chain of title from the awardees. ²

On July 9, 1850 there was enacted into law a Hawaiian statute commonly referred to as the 'School Lands Act of 1850,' the pertinent section thereof providing that:

'7. All sites for school houses and houses for public worship, now occupied and in use, and not owned by private parties; and all lands connected therewith, granted either by the government, or by individuals, chiefs or landlords, with a view to promote the interests of education or religion, shall be reserved as government property, devoted to the purposes above mentioned; the amount of lands reserved for such sites however not to exceed two acres in each case; and in case the adjacent lands are sold or leased, such land shall not be included.' II R.L.H.1925 at 2184.

On December 23, 1850, the Hawaiian Privy Council by Resolution 2 appropriated certain lands by name 'for the general purposes of education on the islands.' The list of affected lands did not include the subject property, except insofar as the general concluding language of the resolution is applicable:

'And all lands now occupied by the Government Schools, and known as having been appropriated to their use, either by individual chiefs or by the Government.'

On February 6, 1852, J. W. Makalena, a government surveyor, prepared a description, together with a sketch thereof, of a parcel of land comprising 1.74 acres, entitled: 'Survey of School Lot and Designation as School House site,' and referred to as School Grant No. 27. On the bottom thereof, there is a notation ³ in Hawaiian dated November 3, 1854 and signed by Keoni Ana (John Young) and R. Armstrong (Minister of Public Instruction) apparently made pursuant to section 2 ⁴ of the 'School Lands Act of 1850.' A copy of this survey was filed in the Land Book, Department of Public Instruction, which is in the custody of the Survey Office. Makalena's description is by metes and bounds of an area located in Waikiki-waena (middle of the then extensive District of Waikiki), and is tied down only in that the point of beginning thereof is referred to as being adjacent to the boundary of 'Hawaii.' ⁵

On March 12, 1855, the Board of Commissioners to Quiet Land Titles confirmed the title to the Ili of Maulukikepa in Kalama In 1859 another statute pertaining to school lands, and more particularly the disposition thereof, was enacted. In modifying Section 7 of the 'School Lands Act of 1850,' Section 752 of the 1859 Act provided:

and Nakookoo by Land Commission Award Nos. 5240 and 5364. On April 8, 1857, upon payment of commutation, Royal Patent No. 3579 was issued to the awardees covering the 13.53 acres of the Ili. It is admitted that the school lot claimed, and sought to be registered, is wholly within the boundaries of the Ili of Maulukikepa as covered by Land Commission Award Nos. 5240 and 5364 and described in Royal Patent No. 3579. Neither the Royal Patent nor the Land Commission Award of the Ili of Maulukikepa contain any language of exception or reservation of any schoolhouse site.

'Sec. 752. All sites for school houses and houses for public worship, not owned by private parties, societies or corporations, and all lands connected therewith, which have been granted by or to the government, for the purpose of promoting the interests of education or religion, shall be reserved as government property, so long as they are devoted to the purposes for which they were granted, and shall be under the charge and control of the Board of Education; and in case they shall cease to be used for the purposes for which they were granted, for not less than one year, they shall revert to the original grantors, or their representatives. In all cases where lands are sold or otherwise disposed of, the sites for school houses and houses for public worship, shall not be included in such sale or disposition.' II R.L.H.1925 at 2185-2186.

This statute with the provision for reverter upon nonuse remained in effect for 37 years until repealed in 1896. ⁶

On May 6, 1878, J. F. Brown, a government surveyor hired for the purpose of locating the schoolhouse site in question, made a 'Plan of School Land-Moiliili,' computed the area surveyed as containing 1.73 acres, and fixed the schoolhouse site as surveyed by J. W. Makalena as being wholly within the Ili of Maulukikepa. ⁷

Sometime between December of 1880 and March of 1881, S. E. Bishop was commissioned by the government to survey the District of Waikiki ⁸ for the purpose of locating kuleana ⁹ and other boundaries therein. The resulting survey map, filed with the State Survey Office as Registered Map No. 1398, shows the presence of walls and fences in the area of the school lot in question but the outline of the school lot itself, as plotted by Brown, was superimposed thereon by someone other than Bishop.

Both the Brown survey of 1878 and that of Bishop in 1881 show the lower or makai (southerly) portion of the school lot along its claimed southerly and easterly boundaries to be physically separated by fences and stone walls from the balance of the school lot upon which the schoolhouse On September 30, 1882, Royal Patent No. 27 was issued by King Kalakaua granting the school lot in question to the Board of Education, described by metes and bounds as shown by the Brown survey.

                was located.  10  Within this segregated area was also [49 Haw. 542] shown an unidentified building of a substantial character.  This is the area of 14,885 square feet claimed by respondent not to be within the schoolhouse site claimed and sought to be registered by the State in the land court proceedings below
                

In 1902, government surveyor Harvey made a survey of the area in question for the purpose of subdividing the Ili of Waiaka which adjoined the Ili of Maulukikepa.

In 1905, one of the predecessors in title to respondent notified the Department of Public Instruction that the fencing off by the Department of a portion of the 14,885 square feet claimed by respondent in accordance with some new unidentified survey amounted to a taking of at least one-half of the property she inherited from her father who had acquired the same by deed in 1877 and had died in possession. In September of 1913, the Superintendent of Public Instruction reported the removal of a fence by 'a man named Silva' along the makai (southerly) side of the school lot and of a fence by an unknown Hawaiian man. H. E. Newton, who made the survey and plotted the school lot for the land court application of the State, noted the removal between September 18, 1913 and October 3, 1913, of the fence along the makai (southerly) boundary of the school lot and its relocation some forty-two to fifty-five feet mauka (to the north) coinciding with the mauka (northerly) boundary of the 14,885 square foot portion of the school lot claimed by respondent. The fencing of the other part of the 14,885 square foot portion of the school lot claimed by respondent and located in the lower makai corner does not appear to have been disturbed by the school authorities in 1905.

On May 6, 1915, the then Territory...